Page images
PDF
EPUB

sum.

Under that Act, as our readers know, the vendor's solicitor's women's property, is only the degree of protection which would be conveyancing costs, recoverable from the purchasers, are limited given by a marriage settlement which should merely give the to the deduction of such title as the purchasers shall require, property to the wife for her separate use, without in any way and the perusal and execution of the conveyance. But (as the restricting her power to deal with it. But every legal practitioner council themselves point out), “in practice, as the purchasers is aware that the chief use of settlements, so far as the wives are have the means, by paying the purchase-money into court, concerned, is to protect them from the influence of their husbands ; of acquiring an absolute fee simple, titles are much less strictly and this is a protection which the Act is powerless to give them. investigated on these sales than on an ordinary purchase.” It is a generally received axiom, that if a settlement merely gives The result of excluding these transactions from the scale cannot the wife a separate use, leaving her free to give the property to fail to be to hold out a strong inducement to the purchasers' her husband, the property might as well have been allowed to go solicitor to ask for an extremely short title, and he will, of course, straight to him by the operation of the law, instead of by a more use the very shortest form of conveyance.

The result to the circuitous, but hardly less inevitable, route. Perhaps the courage vendor's solicitor, who has to charge on the old system, will and ingenuity of Lord Cairns may some day elude this difficulty be at once appreciated. We do not at all understand either the by devising a ready-made “implied settlement for everybody; reasoning used by the council in support of their proposal, or the but until this has been done, “marital influence” is likely (at all motives which can have led them to make such a proposal. We events for a long time to come) to have nearly the same effect, for know, as a matter of fact, that some of the practitioners most in- all practical purposes, as

“ marital right." terested in the subject are greatly dissatisfied with the provision It by no means follows from what we have said that such an inserted in the Order at the suggestion of the council.

Act is superfluous; and since the above-mentioned drawbacks The rejected suggestions embrace only a few of the points upon its practical effect were inevitable, they are certainly not the which we have noticed in our remarks on the Order. We drew Act's fault. Even if the Act had attempted nothing more than a attention to the exclusion of plans from the list of disbursements. consolidation of the existing law, there would have been quite London solicitors will find the cost of the three plans required by enough to justify its existence, if it had also effected some of that the Middlesex Registry a heavy deduction from their scale improvement for which the old Acts afford abundant room. But remuneration. The council state the charge for the set as varying we regret to say that, in our opinion, the Act is not very well from ten shillings to two guineas or more, we should imagine it is qualified to claim this justification. It contains one judicious comparatively rarely that they can be obtained for the former provision, in section 1, sub-section (4); and another, which is not

The rejected suggestions relating to conveyancing tran- well expressed, is inserted, in what we think a very clumsy sactions under registered titles, and charges on transactions manner, into the saving clause (section 19). With these excepover £100,000, are not of much practical moment. The most tions, we find little in the Act which seems to deserve strong important rejected suggestion is that which relates to the commendation; and if our hopes (chastened by previous experiprovision for the division of the commission into negotiation ence) had not been exceedingly moderate, we should have felt and conduct of auction fees, and fees for deducing and investi- exceedingly disappointed. gating title and completing. Probably the course adopted by the The Act begins rather infelicitously in its preamble, not only council was the only feasible one under the circumstances, since speaking of the Act of the thirty-third and thirty-fourth Victoriaevery argument that could be used against the division of which, we submit, is really carrying slovenliness too far-but the scale would no doubt have been urged by Mr. Druce before falsely stating that the said Act is “ intituled the Married Women's the Tribunal. But we do not think that, even if the suggestion Property Act, 1870," " whereas, in reality, it is intituled “ An Act to of the council had been adopted, and the increased scale had been amend the Law relating to the Property of Married Women.” made applicable to all solicitors who do not receive a negotiation The Act of 1874 (which is profanely ascribed to a thirty-seventh fee, the result would have been satisfactory to the profession. It and thirty-eighth Victoria) is “intituled ” quite correctly. Perhaps is little short of absurd that a scale for the general remuneration some reluctance was felt to remind the world that once upon a of solicitors should have been framed with reference to a course time somebody invented such an Alexandrine monstrosity as

" The of practice which is adopted only by a small minority of solicitors. Married Women's Property Act, 1870, Amendment Act, 1874,” We think that the refusal of the Tribunal to modify the and in a marginal note styled it a “ short title.' provisions with reference to the division of the remuneration We own that, in our opinion, gross violations of the elementary will be regarded by the great mass of the profession as affording rules of grammatical composition are no ornaments to an Act of ample justification for the course taken by the President of the Parliament; and we think that, judged by this very moderate Incorporated Law Society of refusing to sign the Order.

standard, the present Act might, with a strong expectation of winning the prize, claim to stand high among the worst Acts

ever drafted. We will give one specimen of the faults to which THE MARRIED WOMEN'S PROPERTY ACT. square brackets, some words which are absolutely necessary to give

we allude, by inserting into section 23, in italics and between I.

that section any meaning :This Act is undoubtedly of sufficient practical importance to be “23. For the purposes of this Act the legal personal representative of any noticed with some care ; though we think that the disposition of married woman sball, in respect of her separate estate, have the same rights the lay newspapers has been to err on the side of exaggeration and liabilities [as she would

have and be subject to the same jurisdiction as the A great part of the Act is a consolidation of existing law; and would be [subject to] if she were living." the whole of it, whether old or new, must be viewed in connection

A married woman is hardly a “right," and certainly is not a with the prevalence of the custom of bringing married women's jurisdiction”; and if she is a " liability," this is in a different sense property into settlement. Whether in relation to the classes who from that in which the word seems here to be used. Even after do, or to the classes who do not, now indulge largely in marriage our necessary amendments, the composition remains very insettlements

, we see reason to suppose that its practical conse- elegant. quences, at all events for a long time to come, will not be very The most important sections of the Act are perhaps the 1st, the startling. So far as it concerns the upper classes and people in 2nd, and the 5th. Of these, the 1st essays to give, what has never general who are accustomed to settlements, the Act contains nothing before been so fully attempted, a complete definition of the sense which seems likely to make settlements less common; nor does it in which the property of married women is, to speak familiarly, seem to have been designed to have any such effect. Therefore, so far" made their own by the Act. Its language exhibits a singular as such people are concerned, the Act's effect is necessarily confined mixture of what is strictly appropriate to the old equity theory of to the protection of such property belonging to married women as a separate use, and what would serve to describe an absolute owneris not comprised in some settlement; and this is probably a very ship at law. There is about it a curious air of being somewhat small part of the property belonging to the married women of the frightened at its own daring, begetting a tendency to minimize classes under consideration. And so far as regards other classes, its decrees by a sort of qualifying clauses. It begins as we suspect that things will remain much the same as before. For follows :the protection which the Act attempts to extend over married “1. (i.) A married woman shall, in accordance with the provisions of this

[ocr errors]
[ocr errors]
[ocr errors]

Act, be capable of acquiring, holding, and disposing by will or otherwise, of reverses the now-established rule (Pike v. Fitzgibbon, 29 W. R. any real or personal property, as her separate property, in the same manner 551, L. R. 17 Ch. D. 454), that the contract of a married woman, as if she were a feme sole, without the intervention of any trustee."

when it binds her separate estate, binds only that of which she Not to cavil at the grammar (" capable of acquiring of prop; was possessed at the time of the contract

. The 5th and last suberty'), we seem here to have one expressed and one implied section, reversing the law as settled by Ex parte Jones, Re Grissel restriction, which we have marked respectively by italics, upon (L. R. 12 Ch. D. 484), makes a married woman trading apart from the extent, or degree, so to speak, of the soleness of the feme; her husband subject, in respect of her separate estate, to the which seem to imply some distinction between a feme sole by bankruptcy laws as though she were a feme sole. The former virtue of the Act, and a feme sole by virtue of the common law. provision seems to be a very fair and judicious amendment of an They suggest the conclusion that the true intent of the enact- * equitable" rule, which never had any touch of equity to recomment is merely to dispense with the appointment of a trustee; mend it ; and the latter seems to be a very proper supplement to and that no greater rights, powers, and privileges are conferred the other provisions of the Act. by the Act upon a married woman in respect of the property to which it relates than would have been possessed by her before the Act in respect of property settled to her separate use with the intervention of a trustee. Some important practical consequences depend

CORRESPONDENCE. upon the reply to be given to the question thus raised. It is well known that, under the existing law, if a wife entitled to personal

THE MARRIED WOMEN'S PROPERTY ACT, 1882. property to her separate use dies intestate and possessed thereof, her husband (holding it without account as her administrator) is

[To the Editor of the Solicitors' Journal.] entitled to take the property by his marital right. The Act

Sir,—What is the meaning of section 19 of the Married Women's makes no express provision for such a case ; and the future rule | Property Act of last session ?

shall It enacts (1) that, “Nothing

render of law seems to depend upon the question whether section 1 gives inoperative any restriction against anticipation

to be here. personal property to a married woman as to a feme sole to all after attached to the enjoyment of any property or income by a woman intents and purposes whatever, in which case the property can of under any settlement,” &c., but the last clause of the section provides course be subject to no marital right; or whether it makes her that "no restriction against anticipation contained in any settlement or for this purpose a feme sole only so far as the existing doctrine of agreement for a settlement of a woman's own property to be made or separate use treats her as being a feme sole. This question we do entered into by herself shall have any validity against debts contracted not profess to decide; and we think that the Act ought not to by her before marriage, and no settlement or agreement for a settlement have left it to be decided by mere inference.

shall have any greater force or validity against creditors of such woman

than a like settlement or agreement for a settlement mode or entered into The 2nd sub-section enacts, in curiously inelegant but not by a man would have against his creditors." unintelligible language, that a married woman (1) may bind her- No settlement, therefore, is to have any greater force or validity against self by any contract to the extent of her separate property; (2) creditors of a married woman than a like settlement entered into by a may sue and be sued, in all respects as if she were a feme sole, man would have against his creditors. without her husband being joined either as plaintiff or defendant;

This sentence refers, not merely to creditors of a married woman in (3) that any damages or costs recovered shall be her separate respect of debts contracted before ber marriage, but to creditors in respect

of debts contracted after marriage. property; and (4) that “any damages or costs recovered against

Now it is, I believe, still the law that, although a settlement may be her

shall be payable out of her separate property and made on a man or a feme sole determinable on bankruptcy or alienation not otherwise.” It would seem that the provision of this section, by the addition of a proper gift over, yet that-to use Mr. Davidson's that a married woman may sue and be sued as if she were a feme expression—a person cannot in general settle his own property so as sole, is not intended to apply to cases where the litigation or pro- to take under the settlement an interest defeasible on alienation or ceeding is between her and her husband. Section 12 deals with bankruptcy. this matter, and it provides that :

It follows that as regards property absolutely belonging to a man it is,

to say the least, extremely dificult so to settle it on his marriage as to “ 12. Every woman ... shall have in her own name against all defeat his creditors altogether, unless indeed the first life interest is given persons whomsoever, including her husband, the same civil remedies, for the protection and security of her own separate property, as if such property tect such life interest against his creditors or alienees.

to the wife, for if a life interest be limited to him no gift over will probelonged to her as a feme sole, but, except as aforesaid, no husband or wife sball be entitled to sue the other for a tort."

If then the latter part of section 19 is to be construed strictly, a woman

about to be married cannot so settle her own property on herself as to This is, we believe, the only place in the Act where any express prevent anticipation of the income by her; in other words, she cannot mention is made of civil proceedings (section 16 provides husbands protect herself from her creditors if she retains a life interest in her own with the right to take criminal proceedings against their peccant fortune. Where the lady's fortune is provided by her father or relations helpmeets) to be taken by a husband against his wife. At all she may be restrained from anticipation as a gentleman may in effect be events, this is the first place in which such proceedings are restrained now, but considering the numerous cases in which the lady's expressly mentioned ; and we hardly know whither, in this fortune brought into settlement is her own, the meaning of the part i

have quoted of the 19th section is of no small importance. respect, to refer the words

except as aforesaid.” The matical connection strongly suggests that the expression refers to part of it--but is this clear ?

Possibly the whole section may be held to be controlled by the first

H. something aforesaid in the same section—that is to say, that the Hereford, October 10. case of a husband suing a wife " for a tort” was thought to be somehow included under proceedings taken by a wife for the protection of her separate property. The meaning is, no doubt, that,

STAMPING DEEDS AFTER EXECUTION. except in proceedings by the wife for the protection of her separate

[To the Editor of the Solicitors' Journal.] property, actions of tort shall not be allowed between husband and Sir,-I think your correspondent, “A Solicitor,” is mistaken in his wife.

supposition that any authority can be found for the proposition which he The 3rd sub-section provides that any contract by a married

advances. woman shall be deemed to be a contract entered into by her with before stamping, examined by a very acute and experienced official,

Practically, the fact was as he suggests, for all executed deeds were, respect to and to bind her separate property, unless the contrary whose name, if I recollect rightly, was Earwaker, and who marked upon be shown." This probably was meant to refer to the equitable them the duty to which he considered they were subject, and I always doctrine that separate estate is not, strictly speaking, bound by found his dicta confirmed by the commissioners. the contract, but by the married woman's declaration of intention At that time a fee was payable for the commissioners' adjudication in that behalf, which intention was not necessarily to be inferred which was therefore only asked for in very exceptional cases. from the fact that she had contracted. We believe, however, that,

October 10.

A LONDON SOLICITOR. at the present day, the contract would undoubtedly be regarded as prima facie evidence of the intention; and that, from this point of

THE PONTEFRACT POACHING CASE. view, the present sub-section only declares the existing rule.

[To the Editor of the Solicitors' Journal.] assume that it does not in any way affect the doctrine of the wife's Sir,-Allow me to correct an error appearing in your issue of the 7th authority to bind her husband as his agent. The 4th sub-section inst.,' where I find it stated that the Pontefract justices dismiased a

C

[ocr errors]

gram

day of

charge against a girl for poaching on the ground that the Prevention of With this explanation the suggestions (printed in Appendix C.) made by Poaching Act applied to males only. This is entirely incorrect, as the the council to the Tribunal will be better understood, and it will be observed following facts will show:-A girl of nine years of age was brought that they were directed to many other points of detail, some of them of conbefore the West Riding justices at Pontefract, on the 30th ult., charged siderable importance. with an offence under the 2nd section of the statate 25 & 26 Vict. c. 114.

Before these suggestions were sent in, Mr. Druce's term of office had The only evidence against her was that three nets and some pegs were expired, and it fell to the lot of the president for this year to attend the found in her possession in the main street of a village at nine o'clock in meeting of the Tribunal, at which the council's saggestions were considered. the morning by an officer then on duty. When charged she stated that He did not succeed in indacing the Tribunal to adopt those which were she was taking them to be mended. To the surprise of everyone, the that he should be probably unable to concur in the Order, but requested

more important, and at the close of the discussion intimated his opinion solicitor engaged for the defence contended that females did not come

time for consideration, On the following day he wrote to the Lord within the purview of the above-mentioned Act, which contention was at Chancellor a letter dissenting from the Order, which will be found printed once overruled. The case was heard and dismissed on its merits.

in Appendix D. CLAUDE LEATHAM, Clerk to the West Riding Justices.

APPENDIX A. Pontefract, October 11.

January 6, 1882. [Our observations were based on the report of the case which appeared Remuneration Act, 1881 (44 & 45 Vict. c. 44).

Draft of General Order proposed to be made in pursuance of the Solicitors' in the Times.-ED. S. J.]

By virtue of the provisions of the Solicitors' Remuneration Act, 1881, we do bereby order as follows, that is to say:

1. This order is to take effect from and after the 188

2. The remuneration of a solicitor in respect of business connected with THE REMUNERATION ORDER.

sales, purchases, leases, mortgages, settlements, and other matters of convey.

ancing, and in respect of other business, not being business in any action, or The following statement has been issued by the Council of the Incorporated transacted in any court, or in the chambers of any judge or master, and Law Society with reference to the Order made under “ The Solicitors' Remu

not being otherwise contentious business, is to be regulated as follows, neration Act, 1881":

namely : Upon the reassembling of the council after the Long Vacation of 1881, a

(a) In respect of business connected with sales, purchases, and mortgages committee was, at the request of Mr. Druce, the then president, appointed completed, the remuneration of the solicitor having the conduct of the to confer with and advise and assist him in preparing a Draft Order to be business, whether for the vendor, purchaser, mortgagor, or mortgagee, submitted to the Tribunal constituted by the Act,

is to be at the rates following, that is to say, two per cent. on the This committee had frequent meetings, and devoted much time and atten.

amount of the purchase or mortgage money up to and including tion to the principles on which the Order should be framed. The first question $1,000, one per cent, on any further amount up to and including a for consideration was whether the scale introduced by the council in 1880 total amount of £5,000, and one-half per cent. on any further amount should be adopted as a basis, and if so, with any and what modifications. beyond £5,000, but subject to the regulations contained in Part I. of Mr. Druce entertained a strong opinion that he should bave great difficulty in the first schedule to tbis Order. advocating it, and the experience of most members of the committee pointed (6) In respect of business connected with leases, or grants in the nature of in the same direction, as it was found that the scale had been little used, except leases, of the kinds meotioned in Part II. of the first schedule to this on mortgages. It was strongly urged that a uniform scale, based upon a Order, completed, the remuneration of the solicitor having the moderate percentage, and made applicable to the solicitors on both sides in conduct of the business is to be that prescribed in Part II. of such purchases and mortgages, would be preferable, and that simplicity would be first schedule. one of the most important elements of success in popularising any scale. This (c) In respect of business connected with settlements, completed, of personal view found favour with the committee, and ultimately with the council; and, estate, the remuneration of the solicitor having the conduct of the after careful inquiries into its probable operation, as tested by reference to

business is to be that prescribed in Part III. of the first schedule to this bills of costs for a great number of actual transactions of various amounts Order. which had passed through the offices of members of the council, A com- (d) In respect of business connected with any transaction, the remuneramission of 108. per cent, was adopted as the staodard. This was identical tion for whicb, if completed, is herein before or in the first schedule with the commission charged by stockbrokers on dealings with railway and hereto, prescribed, but which is not, in fact, completed, and in respect other stocks requiring transfer by deed. It was, however, felt that baring of all other business the remuneration for which is not hereinbefore, regard to the large number of solicitors, both in London and the country,

or in the first schedule hereto, prescribed, the remuneration is to be who were concerned cbiefly in small transactions, this percentage must be regulated by the terms contained in this Order and in the schedule increased as to sums below a certain amount, although it was obvious t bat hereto, if and so far as applicable. such increase would afford an argument for some corresponding decrease on 3. The remuneration in this "Order or in the schedules hereto prescribed is large transactions. After much discussion the first draft of an Order based not to include upon these principles was put into shape and communicated to the various

Disbursements properly and reasonably made. country law societies. A numerous deputation, representiog the most im.

Costs or charges in reference to any contentious business, order of court, portant of those bodies, attended meetings of the committee of the council

or other proceeding in any court, required to be conducted, obtained, or on December 16 and 30, 1881, and February 1, 1882, when various suge instituted in tbe course of the transaction. gested alterations in detail proposed by the country societies were

4. In respect of any business not completed before the time when this Order sidered and some of them adopted, and the draft in its amended form was

takes effect, and in respect of all business subsequent to that time, the remu. at the last of such meetings reconsidered by the deputation apart from the neration of a solicitor shall be regulated, not according to length of documents, committee of the council, and approved by all the country societies repre- number of conferences, or letters, or other distinct parts of the whole sented with one exception.

transaction, but by the nature and importance of the transaction, the The Draft Order as so formally approved (which will be found in Appen- service performed, and the knowledge, skill, and labour employed therein; dix A.) was adopted by the then president, and laid by him before the first and in respect of any business which is required to be, and is, by special meeting of the Tribunal, which took place on May 13, 1882.

exertion, carried through in an exceptionally short space of time, a soli: Several subsequent meetings of the Tribunal were held, and on Jaly 4 the citor shall be entitled to a proper additional remuneration for the special council received for consideration the Draft Order as proposed to be passed exertion, according to the circumstances. (see Appendix B.). The Aot gave to the council the right of making sogges- 5. A solicitor may accept from his client, and a client may give to his tions and observations on the Draft Order, and the Tribanal were bound to solicitor, security for the amount of remuneration to become due to the take these into consideration before finally passing it.

solicitor for business to be transacted by him, and for interest on such The coupoil found that the Draft Order of the Tribanal differed very amount, but so that interest is not to commence

till the amount due is materially from that proposed by their president, the commissions on sales, ascertained, elther by agreement or taxation. purchases, and mortgages having been divided into two portions, one for 6. In this Order, and the schedules hereto, the following words and Degotiating and the other for deducing the title and completing the business, expressions shall have the meaning ascribed to them in the 3rd section and settlements baviog been exoladed from the scale.

of the Solicitors' Remuneration Act, 1881-yiz. : It was known that the scales which bad for some years been in operation

Solicitor, at Liverpool and Manchester were thus divided, and the question had been

Client, fully considered in the settlement of the President's Draft Order, in which

Person. any such division was designedly avoided as on the whole undesirable. Bot whether this was or was not so on principle, the council found that

THE FIRST SCHEDULE. the negotiation fee was in the Tribunal's Draft Order clogged with condi

PART I. tions as to the non-payment of any commission to surveyors or

SALES, PURCHASES, AND MORTGAGES. tioneers, whioh would practically render it inoperative in all but a small

(a) Fractions of £100 to be reckoned as £100. minority of sales aud parobases, both in London and throughout the greater () Where the prescribed remuneration would, but for the present propart of England, according to the established course of business.

vision, amount to less that £5, the prescribed remuneration is to be £5. Under these oircumstances, and having reason to believe that the condi.

(c) Where property is sold subject to incumbrances, the amount of the tions above referred to would be adhered to by the majority of the Tribunal, incumbrances is to be deemed part of the purchase-money. the council came to the conolusion that the better chance of getting the (d) On a sale in lots, each lot sold to a separate purchaser is to be Order put into a form satisfactory to the bulk of the profession would be taken as a separate sale. to suggest an alternative scale under which solicitors, when not entitled to () The prescribed remuneration is to include the preparation or perasal the negotiation fee, would get a higher commission for the conveyancing. and approval of the contract (if any), and the completion thereof.

CON

[ocr errors]

t does not

£5.

ex

and does not ceed

£50

ex

£150

ceed Where

£150

it

exceeds

...

PART II.

2. The remuneration of a solicitor in respect of business connected with LEASES.

sales, purchases, leases, mortgages, settlements, and other matters of convey.

ancing, not being business in any action, or transacted in any court, or in the .- REMUNERATION OF SOLICITOR OF LESSOR OR GRANTOR.

chambers of any judge or master, is to be regulated as follows, pamely : (A) Lease or Grant at a Rent with or without premium, other than a Lease or (a) Io respect of sales, purchases, and mortgages completed, the remo peraGrant of Mincs or Minerals, or a Lease or Grant for Building Purposes.

tion of the solicitor baring the conduct of the business, whether for the Seven and one-half per cent. on the rent reserved up to and including vendor, purchaser, mortgagor, or mortgagee, is to be that prescribed ic the rent of £100, but not less in any case than £5 ; five per cent. on any Part I. of the first schedule to this Order, ant to be subject to the further rent up to and including a total rent of £200, and two and one. regulations tberein contained. half per cent. on any further rent beyond £200.

(6) In respect of leases, and agreements for leaser, of the kinds mentioned in

Part II. of the first schedule to this Order, or conveyances reserving (B) Lease or Grail for Building purposes at a Rent with or without

rent, or agreements for the same, when the transactions shall hapo premium.

been completed, the remuderation of the solicitor having the conduc:

of the business is to ba tbat prescribed in Part II. of such first Amount of Annual Rent. Amount of Remuneration,

schedule. (e) lo respect of business not herein before provided for, connected with any

transaction, the remuneration for wbich, if completed, is hereinbefore, Where

or in the first schedule bereto, prescribed, but which is not, in fact, exceed Where it exceeds £5 The same payment as on a rent of £5,

completed, and in respect of settlements, mipiog leases or licence', or and also 20 per cent. on the excess

agreements therefor, reconveyances, transfers of mortgage, or further beyond £5. Where it exceeds £50 The same payment as on a rent of

charges, not provided for bereinbefore or in the first schedule here'o, but does not £50, and 10 per cent. on the excess

Assignments of leases not by way of purchase or mortgage, and in beyond £50.

respect of all other deeds or documents, and of all other business the The same payment as on a rent of

remuneration for which is not bereinbefore or in the first schedule £150, and 5 per cent. on the excess beyond 150.

hereto prescribed, the remuneration is to be regulated by the terms con.

tained in the second schedule bereto. (C) As to all the Leases or Grants at a Rent, other than a Lease or Grant 3. Drafts and copies made in the course of businese, the remuneration for of Mines or Minerals,

wbich is provided for by this Order, are to be the property of the client. (~) Fractions of £5 to be reckoned as £5.

4. The remuneration prescribed by this Order is not to include stamps, (6) When ang premium is paid, then, in addition to the remuneration above counsel's fees, auctioneer's or valuer's charges, travelling or hotel expeuses, prescribed, there is to be paid a further sum equal to the prescribed remunera

fees paid on searches to public officers, on registrations, or to stowards of tion on a purchase at a price equal to the premium.

manors, costs of extracts from any register, record, or roll, or other disbursement (c) The prescribed remuneration is to include the counterpart.

re 18onably and properly paid, nor any exira work occasioned by changes (d) The prescribed remuneration is not to cover negotiations, or investiga- occurring in the course of any businees, such as the death or insolvency of a tion, or deduction of t't'e (if required to be deduced), all of which are to be party to the transaction, nor is it to include any business of a contentions paid for in addition,

character, nor any proceedings in any court, but it shall include law stationer's

cbarges, and allowances for time of the solicitor and his clerks, aod for copyII.- EMUNERATION OF THE SOLICITOR OF THE LESSEE OR GRANTEE. ing and parchment, and all other similar disbursements. Ope-balf of the amount prescribed as the remuneration of the solicitor of

5. Ia respect of any business which is required to be, and lo, by special the lessor or graptor.

exertion, carried through in an exceptionally short space of time, a solicit .r PART III.

may be allowed a proper additional remuneration for the special exertion,

according to the circumstances. SETTLEMENTS OF PERSONAL ESTATE.

6. In all cases to which the scales prescribed in the first schedule hereto (a) The same remuneration as on a purchase at a price equal to the value shall apply, a solicitor may, before undertaking any business, by writing of the personal estate settled, as estimated for the purpose of stamp duty; under his hand, communicated to the client, eloct that his remuneration

(6) When the settlement is on a marriage, the solicitor of the intended wife shall be according to the present system as altered by the second schedule sball receive remuneration at this rate, and the solicitor for the intended hereto; but if no such election shall be made, his remuneration shall be husband slall receive remuneration at half this rate.

according to the scale prescribed by this Order.

7. A solicitor may accept from Þis client, and a client may give to his THE SECOND SCHEDULE.

solicitor, security for the amount of remuneration to become due to the Instructions for and drawing and perusing Deeds, Wills, and other documents. solicitor for business to be transacted by him, and for interest on such

$ 8. d. amount, bat so that loterest is not to commende till the amount due is Such fet 8 as, baving regard to the interest of the party on whose

ascertained, either by agreement or taxation. A solicitor may charge betalf the document is prepared or perused, the amount of the

interest at four per cent. per annum on his disbursements and costa, property to which it relates, the care, skill, labour, and responsi.

whether by scale or otherwise, from the expiration of one month from bility invelved, the importance of the document, and the papers to

demand from the client. And in cases where the same are payable by aa be perused, may be fair and reasonable.

infant, or out of a fund not presently available, such demand may be made

on the parent or guardian, or the trustee or other person liable. A BSTRACTS OF TITLE.

8. In this Order, and the schedules hereto, the following words and ex. Drawing and copying abstracts of title.

pressions shall have the meaning ascribed to them in the 3rd section of the For each brief sbeet of eight fo!ios

· 0 10 0 Solicitors' Remuneration Act, 1881, viz. :

Solicitor,
Attendances.

Client,
Such a fee as, baving regard to the place and circumstances at or

Person. in wbich the attendance takes place, the nature and importance of the businens, the amount of property involved, the nature and im

THE FIRST SCHEDULE. portance of the papers and documents required to be referred to before and during the attendance, and the skill and koowledge

PART I. required, may be fair and reasonable. Io ordinary cases

· 0 10 0

SALES, PURCHASES, AND MORTGAGES.
Journeys from home.

(3.) For the

Ath and each (4.) For each Such a fee as, having regard to the ciroumstances and length of

(2.) For the subsequent subsequent tbe journey, the time occupied, and the nature and importance of

(1.) For the 2nd and 3rd £1,000 up to £1,000 up to the business to be transacted, may be fair and reasonable.

Ist £1,000. £1,000. £10,000. £100,000,

Vendor's solicitor for negotiaIa ordinary cases for every seven boars employed or detained on

ting a sale of property by business or in travelling

5 5 0 private contract...

20s. per £100 20s. per £100 108. per £100 6s. per £100

Do., do., for conducting a sale
APPENDIX B.

of property by public auction,

including the conditions of Receired from the Lord Chancellor, July 4, 1882. saleRegulations and Provisions proposed to be embodied in the General Order

When the property is sold.. 208.

When the property is not to be made pursuant to the Solicitors' Remuneration Act, 1881, for pre- sold, then on the reserved scribing and regulating the remuneration of solicitors in respect of busi- price

23.6d.,

ls. 3d., ness connected with sales, purchases, leases, mortgages, settlements, and

[N.B.-A minimum charge of

£5 to be made whether a other matters of conveyancing, and in respect of other business, not being sale is effected or not.] business in any action or transacted in any court, or in the chambers of Do., do., for deducing title to any judge or master, and not being otherwise contentious business.

freehold, copyhold, or lease 24th June, 1882.

hold property, and perusing

and completing conveyance 1. This Order is to take effect from and after the day of

(including preparation of It shall not apply to transactions respecting real property, Purchaser's solicitor for nego188

[graphic]
[ocr errors]

10s.

bs.

2s. Bd...

[ocr errors]

10s.

bs.

[ocr errors]
[ocr errors]

30s.

28,
the title to which has been registered under the Acts of 25 & 26 Vict. c,
53, 25 & 26 Vict. c. 67, and 38 & 39 Vict. c. 87.

tiating a purchase of property
by private contract ....... 205,

20s.
105.

os.

10s.

Bs.

20s.

5s.

[ocr errors]

20s.

108.

[ocr errors]

20s.

205.

58.

20s.

108.

58.

[ocr errors]

Do., do., for investigating title

$5,000 and not exoeeding £50,000, instead of the rates allowed up to the to freehold, copyhold, or leasehold property, and preparing

amounts mentioned in those columns respectively. and completing conveyance (including perusal and com.

PART II. pletion of contract, if any) 30s.

108. Mortgagor's solicitor for deduc

LEASES, OR AGREEMENTS FOR LEASES, AT RACK RENT (OTHER THAN A ing title to freehold, copyhold,

MINING LEASE, OR A LEASE FOR BUILDING PURPOSES, OR AGREEMENT or leasehold property, perus

FOR THE SAME). ing mortgage, and completing 30s.

5s.

Lessor's solicitor for preparing, settling, and completing loase and counterpart: Mortgagee's solicitor for nego

£7 108. per cent on the rental,

but not less in any case than tiating loan

Where the rent does not exceed £100 .... 2s.6d.

£5. Do., do., for investigating title to freehold, copybold, or lease.

£7 10s, in respect of the first hold property, and preparing

Where the rent exceeds £100 and does not exceed £100 of rent, and £2 10s. in and completing mortgage.... 30s.

£500...

respect of each subsequent

£100 of rent. Vendor's or mortgagor's solici. tor for procuring execution

£10s. in respect of the first

£100 of rent, £2 10s. in respect and acknowledgment of deed by a married woman

Where the rent exceeds £500

of each £100 of rent up to £2 10s, extra. * Every transaction exceeding £100,000 to be charged for as if it were for £100,000.

£500, and £l in respect of

every subsequent £100. 1. The commission for deducing title and perusing and completing convey- Lessee's solicitor for perusing draft and completing One half of the amount payable ance on a sale by auction is to be chargeable on each lot of property held wholly or partially under a distinct title as on a separate sale, whether pur- CONVEYANCES IN FEE, OR FOR ANY OTHER FREEHOLD ESTATE, RESERVING chased by the same or by different buyers, but where a property held under the same title is divided into lots for convenience of sale, and the same pur

RENT, OR BUILDING LEASES RESERVING RENT, OR OTHER LONG LEASES

NOT at Rack Rent (EXCEPT MINING LEASES), OR AGREEMENTS FOR THE cbaser buys several such lots and takes one conveyance, and only one abstract SAME RESPECTIVELY. is delivered, the commission is to be chargeable upon the aggregate prices or Vendor's or lessor's solicitor for preparing, settling, and completing conveyance and reserved prices of the lots.

duplicate, or lease and counterpart: 2. The commission on a sale or attempted sale by auction in lots is to be chargeable on the aggregate of the prices or reserved prices. When property

Amount of Annual Rent.

Amount of Remuneration. offered for sale by auction is tought in and terms of sale are afterwards Legotiated and arranged by the sclioitor, he is to be entitled to charge commission according to the above scales on the reserved price wbere the property

Where it does not exceed £5 £3. is not sold, and also one-half of the commission for negotiating the sale. When

Where it exceeds £5 and does The same payment as on a rent of £5, and also not exceed £50.. ...

20 per cent. on the excess beyond £5. property is bought in and afterwards offered by auction by the same solicitor, Where it exceeds £50 but does The same payment as on a rent of $50, and 10 he is only to be entitled to the scale for the first attempted sale; and for each not exceed £150

per cent. on the excess beyond £50, subsequent sale ineffectually attempted he is to charge according to the present

Where it exceeds £150........ The same payment as on a rent of £150, and 5

per cent. on the excess beyond £150. system, as altered by the second schedule hereto. In case of a subsequent effectual sale by auction, the full commission for an effectual sale is to be charge- Where a varying rent is payable, the amount of annual rent is to mean the largest able in addition, less one-balf of the commission previously allowed on the first

amount of annual rent. attempted sale. Tbe provisions of this role as to commission on sales ur

Purchaser's or lessee's solicitor for perusing One-half of the amount payable to draft and completing

the vendor's or lessor's solicitor. attempted sales by auction are to be subject to rule eleven. 3. Where a solicitor is concerned for both mortgagor and mortgagee, he is lo

As TO ALL LEASES, OR CONVEYANCES AT A RENT, OR AGREEMENTS FOR THE be entitled to charge the mortgagee's solicitor's charges and one-balf of those SAME, OTHER THAN MINING LEASES AND AGREEMENTS THEREFOR. which would be allowed to the mortgagor's solicitor up to £5,000, and on aty 1. Where the vendor or lessor furnishes an abstract of title, it is to be charged excess above £5,000, one-fourth thereof; but only one commission is to be for according

to the present system as altered by the sacoad schedule. allowed for n'gotiating the loan-viz., that of the mortgagee's solicitor.

2. Where a solicitor is concerned for both vendor and purchaser, or lessor and 4. If a solicitor peruses a draft on behalf of sereral parties having distinct lessee, he is to charge the vendor's or lessor's solicitor's charges and one-half of interests, proper to be separately represented, he is to be entitled to charge £2 additional for each such party after the first.

that of the purchaser's or lessee's solicitor. 5. Where a party, other than the vendor or mortgagor, juins in a conveyance

3. Where a mortgagee or mortgagor joins in a conveyance or lease, the

vendor's or lessor's solicitor is to charge £1 18. extra. or mortgage, and is represented by a separate solicitor, the charges of such 4. Where a party other than a vendor or lessor joins in a conveyancs or separate solicitor are to be dealt with under the old system as altered by the lease

, and is represented by a separate solicitor, the charges of such separate second schedule hereto.

solicitor are to be dealt with under the old system as altered by the second 6. Where a conveyance and mortgage of the same property are completed at schedule. the same time, and are prepared by the same solicitor, he is to be entitled to 5. Where a conveyance or lease is partly in consideration of a money pay. charge only ball the above fees for investigatiog title and preparing the mort

ment or premium, and partly of a reat, the premium shall be divided into the gage

deed up to £5,000, and on any excess above £5,000 one-fourth thereof, in number of years included in the term and treated as an annual reat, in addition to his full charges upon the purchase-money and his commissions for addition to the rent reserved, and the commission shall be charged on the negotiating (if any). 7. Frac ions of €100, under £50, are to be reckoned as £50. Fractions of

6. Fractions of £5 are to be reckoned as £5. £100, above £50, are to be reckoned as £100. 8. Where the prescribed remuneration would, but for this provision, amount

THE SECOND SCHEDULE, to less than £5, the prescribed remuneration shall be £5, except oa transactions under £100, in wbich cases the remuneration of the solicitor for the vendor,

INSTRUCTIONS FOR AND DRAWING AND PERUBING DEEDS, WILLS, AND

OTHER DOCUMENTS. purchaser, mortgagor, or mortgagee is to be £3. 9. Where a property is sold subject to incombrances the amount of the in.

Sach fees for instructions as, having regard to the care and labour required, cumbrances is to be deemed a part of the purchase-money, except where the the number and lengths of the papers to be parused, and the other circum. mortgagee purchases, in which case the charge of his solicitor shall be calcu.

stances of the case, may be fair and reasonable. Ia ordinary casos, as to lated upon the price of the equity of redemption.

drawing, &c., the allowance shall be 10. The above scale as to mortgages is to apply to transfers of mortgages

For drawing

2s. per folio.

8d. where the title is investigated, but not to transfers where the title was investi

For engrossing
For fair copying

4d. gated by the same solicitor on the original mortgage or on any previous

18. transfer; and it is not to apply to further charges wbere the title has been so

For perusing previously investigated. As to such transfers and further cbarges the

ATTENDANCES. remuneration is to be regulated accordiog to the second schedule hereto. But In ordinary cases

10 0 the scale for negotiating the loan shall be chargeable on such transfers, and But in extraordinary cases, the taxing master may increase or diminish the further cbarges where it is applicable.

above charge if for any special reasons he shall think fit. 11. The scale for conducting a sale by auction shall apply only in cases ABSTRACTS OF TITLE (where not covered by the above scales). where no commission is paid by the client to an auctioneer. Tho scale for negotiating sball apply to cases where the solicitor of a vendor or purchaser Drawing each brief sheet of 8 folios

68 arranges the sale or purchase and the price and terms and conditions thereof,

Fair oopy

3 4 and no commission is paid by the client to an auctioneer, or estate or other

JOURNEYS FROM HOME.

£ t. d. agent. As to a mortgagee's solicitor it shall only apply to cases where he arranges and obtains the loan from a person for whom he acts. In case of sales In ordinary cases for every day of not less than 7 hours under the Lands Clauses Consolidation Act, or any other private or public Act

employed on business or travelling

5 5 0 under which the vendor's charges are paid by the purchaser, the scale obarge

Where a less time than 7 hours is 60 employed. per hour 0 15 for negotiation shall not apply.

In extraordinary cases, the taxing master may increase or diminish the 12. In cases where, under the previous portion of the schedule, a solicitor above allowance if for any special reasons ho shall think fit. would be entitled to charge a commission for negotiating a sale or mortgage,

APPENDIX C. or for conducting a sale by auction, and he shall not charge such commission, then he shall be entitled to charge the rates allowed by the first column on all

Adopted by the Council, Taesday, Jaly 18, 1882. transactions up to $2,000, and to charge in addition those allowed by the OBSERVATIONS and SUGGESTIONS on Draft Order under the Solicitors' second column on all amounts above £2,000 and not exceeding £5,000, and

Remuneration Act, 1881. further to charge those allowed by the third coluun on all amounts above The Council of the Incorporated Law Society bave oarefully considered

aggregate amount.

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

8. d.

[ocr errors]
[merged small][merged small][ocr errors][merged small]
« PreviousContinue »